On March 27, 2010, the Owen Sound Police Service obtained a general warrant under s. 487.01 and an assistance order under s. 487.02 of the Criminal Code.

The warrant named two Telus wireless subscribers and required the telecom giant to provide the Owen Sound Police Service with copies of any text messages stored on Telus’ computer database that were sent or received by these individuals.

In addition, the warrant required Telus to provide identifying information for anyone who sent text messages to or received text messages from the two people named in the warrant.

It covered a two-week period between March 30, 2010 and April 16, 2010, and required Telus to produce, on a daily basis, all text messages sent or received within the last 24 hours, as well as any related subscriber information.

On March 30, 2010, Telus was also required to produce this information for March 18, 2010 to March 30, 2010.

Telus Communications applied to the Ontario Superior Court of Justice to quash the warrant.

They lost.

“A general warrant is available if the use of a conventional warrant would be impractical in the circumstances. For the reasons discussed, I am satisfied it would have been impractical for the police to obtain a daily warrant to achieve the investigative objective of obtaining stored text messages for daily review.”

— Justice John R. Sproat, R. v. Telus Communications Company, 2011 ONSC 1143

Telus appealed to the Supreme Court of Canada who, in 2013, delivered a split decision (5-2) in their favour.  See R. v. TELUS Communications Co., 2013 SCC 16, 2 SCR 3.

At issue is whether Part VI of the Criminal Code applied to data stored in a computer database.

The two dissenters, Justices McLachlin  and Cromwell, said the general warrant was permissible.

Police did not ask Telus to intercept private communications. They requested communications that Telus had already made copies of and stored in their own internal database.

“Therefore,” the two dissenting justices wrote, “the investigative technique authorized by the general warrant in this case was not an interception of private communication.”

The text message data process used by Telus should not negate the necessity of a wiretap warrant, the majority said, when that type of warrant would be required for almost every other telecommunications provider.

Telus customers should not be given less privacy protection simply because of their choice of service provider.

The majority opinion held the general warrant and its assistance order should be quashed and a wiretap warrant under Part VI of the Criminal Code must be used instead.

But did the Supreme Court make the correct decision?

 

Criminal Code, Part VI

Part VI of the Criminal Code protects us from undue invasion of privacy by agents of the state and defines such concepts as “intercept”, “police officer” and “private communication”.

The purpose of Part VI is to restrict the ability of the police to obtain and disclose private communications.

184 (1) Every person who, by means of any electro-magnetic, acoustic, mechanical or other device, knowingly intercepts a private communication is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

This section of the Criminal Code also allows you and me to record our own conversations with another person or group of people under what is generally known as One-Party Consent. So long as one party to the conversation consents to a conversation being recorded, it’s legal.

Consent to interception

183.1 Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part.

Do Police Require a Wiretap Warrant for Text Messages?

 

Position of Telus Communications

Telus Communications said the “prospective, daily acquisition of text messages from their computer database” constituted an “interception of private communications.”

Telus argued the warrant was invalid because police failed to satisfy the s. 487.01(1)(c) requirement that a general warrant could not be issued if another provision in the Criminal Code is available to authorize the technique used by police.

That “other provision” is Part VI of the Criminal Code, which specifically applies to intercepting communications.

Under normal telecom procedures, Telus would be correct, but there’s a catch.

At the time the warrant was issued, Telus Communications’ procedures for handling text messages was unique in the telecom industry.

“Unlike most telecommunications service providers, TELUS Communications Company routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a brief period of time.” (see note at bottom of this commentary)

 

Position of the Crown

The Crown’s position was the retrieval of messages from Telus Communications’ computer database does not fall within the scope of Part VI since the copies on Telus’ computer database are not real-time communications.

Police were not asking for Telus to “intercept” communications, but to provide copies of text messages Telus had already lawfully intercepted and stored on their computers.

 

The Decision

The appeal hinged on the Court’s view of whether the technical differences inherent in Telus’ transmission of text messages deprived Telus subscribers of the privacy protections provided to users of almost every other cell phone service.

Ultimately, the Supreme Court ruled it did – but was it the correct decision?

 

The following are excerpts from the Majority and Dissenting Opinions. As you will see, there are compelling arguments on both sides.

 

The Majority Opinion

Part VI of the Code provides a scheme to protect private communications.  Telus employs a unique process for transmitting text messages that results in the messages being stored on their computer database for a brief period of time.

The question in this appeal is whether the technical differences inherent in Telus’ transmission of text messages should deprive Telus subscribers of the protection of the Code that every other Canadian is entitled to.

The focus of this appeal therefore turns on the interpretation of “intercept” within Part VI.  “Intercept” is used throughout Part VI with reference to the intercept of private communications.

This means that in interpreting “intercept a private communication”, we must consider the broad scope of Part VI and its application across a number of technological platforms, as well as its objective of protecting individual privacy interests in communications by imposing particularly rigorous safeguards.

The interpretation should not be dictated by the technology used to transmit such communications, like the computer used in this case, but by what was intended to be protected under Part VI.

Text messaging is, in essence, an electronic conversation. The only practical difference between text messaging and the traditional voice communications is the transmission process.

This distinction should not take text messages outside the protection of private communications to which they are entitled in Part VI.

Technical differences inherent in new technology should not determine the scope of protection afforded to private communications.

In my view, text messages are private communications and, even if they are stored on a service provider’s computer, their prospective production requires authorization under Part VI of the Code.

If Telus did not maintain its computer database, there is no doubt that the police would be required to obtain an authorization under Part VI to secure the prospective, and in this case continuous, production of text messages. In fact, most service providers do not routinely copy text messages to a computer database as part of their transmission service.

Accordingly, if the police wanted to target an individual who used a different service provider, they would have no option but to obtain wiretap authorizations under Part VI to compel the prospective and continuous production of their text messages.

This creates a manifest unfairness to individuals who are unlikely to realize that their choice of telecommunications service provider can dramatically affect their privacy.

I would therefore allow the appeal and quash the general warrant and related assistance order.

 

The Dissenting Opinion

The purpose, text and scheme of Part VI show that the disclosure, use or retention of intercepted private communications is distinct from the act of interception itself.  That is, if disclosure or use of a private communication were an interception of it, there would be no need to create the distinct disclosure or use offence.

Similarly, the exemptions from criminal liability show that Parliament distinguished between interception on one hand and retention, use and disclosure on the other.

Under the general warrant, the police sought disclosure from Telus of information that it had already lawfully intercepted.  The general warrant did not require Telus to intercept communications, but to provide copies of communications that it had previously intercepted for its own lawful purposes.

As the scheme of the legislation makes clear, disclosure or use of a lawfully intercepted communication is not an interception.

The distinction in the statute between interception and disclosure cannot be dismissed as a mere “technical difference”.  The distinction is fundamental to the scheme of the provisions.  When Telus turns over to the police the copies of the communications that it has previously intercepted, Telus is disclosing the communications, not intercepting them again.  This disclosure by Telus from its databases cannot be an interception by the police.

The technique sought to be authorized here is not the substantive equivalent of a wiretap authorization. On the facts of this case, a wiretap authorization alone would not allow the police to obtain the information that Telus was required to provide under the general warrant.

Three separate authorizations would be required in order to provide the police with the means to access the information provided to them under the general warrant.

Therefore, even if one were to accept reading into s. 487.01(1)(c) a “substantive equivalency” test, neither the facts nor the law would support its application in this case.

 

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NOTE: I’ve asked Telus if this data storage process for text messages is still in effect today, but as of the date of publication they have not responded to my request.

 

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Email Sent to info@telus.com/support@telus.com on August 15th asking if this is still current policy.

Hello,

I’m researching the 2013 Supreme Court of Canada decision that ruled police required a wiretap warrant if they wanted access to text messages stored on Telus’ computer system. My question regards current Telus data handling processes today vs then.

https://www.canlii.org/en/ca/scc/doc/2013/2013scc16/2013scc16.html

In that ruling, the Supreme Court stated:

“Unlike most telecommunications service providers, TELUS Communications Company routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a brief period of time.”

Is this still the process used by Telus for text messages today?

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